Chapter 537

NOTES OF DECISIONS

      Water control district, in applying for water appropriation permit for hydroelectric project, was exempt from licensing provisions of ORS 543.010 to 543.620 and needed only to comply with requirements of this chapter. Steamboaters v. Winchester Water Control Dist., 69 Or App 596, 688 P2d 92 (1984), Sup Ct review denied

ATTY. GEN. OPINIONS: Reservation to state of “all coal and other minerals” in deed of land by state as reservation of geothermal resources, (1980) Vol 41, p 298

LAW REVIEW CITATIONS: 11 EL 387 (1981); 16 EL 583, 592 (1986); 28 WLR 285 (1992)

      537.110

NOTES OF DECISIONS

      The exercise of water rights established prior to appropriation under this chapter as between the original grantors of the right and their grantees or as between their respective successors in interest is not unlawful. Jewell v. Kroo, 268 Or 103, 517 P2d 657, 518 P2d 1305 (1973)

LAW REVIEW CITATIONS: 2 EL 187 (1971); 4 EL 337 (1974)

      537.120

LAW REVIEW CITATIONS: 4 EL 332 (1974)

      537.130

NOTES OF DECISIONS

      The exercise of water rights established prior to appropriation under this chapter as between the original grantors of the right and their grantees or as between their respective successors in interest is not unlawful. Jewell v. Kroo, 268 Or 103, 517 P2d 657, 518 P2d 1305 (1973)

ATTY. GEN. OPINIONS: Storage rights to store water for later beneficial use are not subordinate to later priority direct use rights unless made so by explicit conditions imposed on storage right, (1989) Vol 46, p 290

LAW REVIEW CITATIONS: 16 EL 583, 592 (1986); 21 EL 7 (1991)

      537.140 to 537.240

ATTY. GEN. OPINIONS: Storage rights to store water for later beneficial use are not subordinate to later priority direct use rights unless made so by explicit conditions imposed on storage right, (1989) Vol 46, p 290

      537.141

LAW REVIEW CITATIONS: 37 EL 105 (2007)

      537.150

LAW REVIEW CITATIONS: 32 WLR 187 (1996); 47 WLR 405 (2011)

      537.153

LAW REVIEW CITATIONS: 32 WLR 187 (1996)

      537.170

NOTES OF DECISIONS

      Phrase “impair or be detrimental to public interest” in this section was sufficiently specific that Water Policy Review Board was not required to adopt rules establishing more definite standards before deciding whether to approve application for hydroelectric project. Steamboaters v. Winchester Water Control Dist., 69 Or App 596, 688 P2d 92 (1984), Sup Ct review denied

      Applicant is not exempt from requirement that protest of proposed order must be filed with Water Resources Department before judicial review of order in other than contested case. Lentz v. Water Resources Dept., 154 Or App 217, 962 P2d 41 (1998)

LAW REVIEW CITATIONS: 4 EL 332, 333 (1974); 16 EL 583, 592 (1986); 21 EL 11, 133 (1991); 32 WLR 187 (1996)

      537.175

LAW REVIEW CITATIONS: 32 WLR 187 (1996)

      537.190

ATTY. GEN. OPINIONS: Storage rights to store water for later beneficial use are not subordinate to later priority direct use rights unless made so by explicit conditions imposed on storage right, (1989) Vol 46, p 290

      537.230

NOTES OF DECISIONS

      Extension of permit to perfect water rights must be conditioned on fish species protection and development of water management and conservation plan. Undeveloped portion of permit that requires extension is measured by reference to maximum rate of water applied to beneficial use before expiration of development deadline in original permit or last-issued extension. WaterWatch of Oregon, Inc. v. Water Resources Dept., 259 Or App 717, 316 P3d 330 (2013)

      “Persistence” as used under this section means that as prerequisite to grant of extension for water diversion, permits are subject to conditions that preserve continued existence or endurance of listed fish species in affected waterway. WaterWatch of Oregon v. Water Resources Department, 268 Or App 187, 342 P3d 712 (2014)

      537.250

ATTY. GEN. OPINIONS: Public right to use artificial lake created for recreation on a nonnavigable stream on privately owned land, (1972) Vol 35, p 1202; storage rights to store water for later beneficial use are not subordinate to later priority direct use rights unless made so by explicit conditions imposed on storage right, (1989) Vol 46, p 290

LAW REVIEW CITATIONS: 33 EL 1019 (2003); 36 EL 1383 (2006)

      537.270

NOTES OF DECISIONS

      In relation to mistakes of a nonclerical nature, the certificate holder must bring those mistakes to the attention of the state engineer within the three-month period to avoid being bound by the terms of the certificate. Wilber v. Wheeler, 273 Or 855, 543 P2d 1052 (1975)

      Issuance of water right certificate for transferred water right and passage of challenge period terminates ability to challenge new certificate based on abandonment of water right prior to transfer. Kerivan v. Water Resources Commission, 188 Or App 491, 72 P3d 659 (2003), Sup Ct review denied

      537.300

See annotations under ORS 537.400.

      537.332 to 537.360

LAW REVIEW CITATIONS: 21 EL 1 (1991); 28 WLR 285 (1992); 36 EL 1125, 1237 (2006); 47 WLR 467 (2011)

      537.332

LAW REVIEW CITATIONS: 19 EL 494 (1989); 21 EL 13 (1991); 36 EL 1383 (2006)

      537.334

LAW REVIEW CITATIONS: 36 EL 1383 (2006)

      537.336

LAW REVIEW CITATIONS: 19 EL 493 (1989); 36 El 1237, 1383 (2006)

      537.341

LAW REVIEW CITATIONS: 36 EL 1237 (2006)

      537.345

(formerly 537.300)

See annotations under ORS 537.400.

      537.346

LAW REVIEW CITATIONS: 36 EL 1237 (2006)

      537.348

NOTES OF DECISIONS

      Water right leased under this section temporarily converts to in-stream water right for term of lease, or converts permanently if transferred as gift or purchase, and any use of water under resulting in-stream water right is not considered use under category of water right existing prior to conversion. WaterWatch of Oregon v. Water Resources Dept., 369 Or 71, 501 P3d 507 (2021)

LAW REVIEW CITATIONS: 26 EL 175 (1996); 36 EL 1125, 1237, 1383 (2006)

      537.350

LAW REVIEW CITATIONS: 21 EL 13 (1991)

      537.356

LAW REVIEW CITATIONS: 36 EL 1125 (2006)

      537.395

LAW REVIEW CITATIONS: 36 EL 1125 (2006)

      537.400

(formerly 537.300, then 537.345)

See also annotations under ORS 537.300 in permanent edition.

ATTY. GEN. OPINIONS: Release of water from Howard Prairie Reservoir to City of Ashland, (1977) Vol 38, p 956

      537.409

NOTES OF DECISIONS

      Applicable standard for approval or denial of reservoir permit under this section is whether reservoir poses “significant detrimental impact” to existing fishery resources. Noble v. Oregon Water Resources Department, 264 Or App 110, 330 P3d 688 (2014), Sup Ct review denied

      537.455 to 537.500

LAW REVIEW CITATIONS: 21 EL 1 (1991); 28 WLR 285 (1992); 28 EL 1137 (1998); 36 EL 1125 (2006)

      537.455

LAW REVIEW CITATIONS: 19 EL 494 (1989)

      537.460

LAW REVIEW CITATIONS: 19 EL 493 (1989)

      537.465

LAW REVIEW CITATIONS: 36 EL 1237 (2006)

      537.470

LAW REVIEW CITATIONS: 27 EL 151 (1997); 36 EL 1237 (2006)

      537.485

LAW REVIEW CITATIONS: 36 EL 1237 (2006)

      537.505 to 537.795

NOTES OF DECISIONS

      Ground Water Act of 1955, construed together with ORS chapter 536, governing administration of water resources generally, cannot be read as expressly prohibiting local bodies from engaging in regulatory activity consistent with statute or agency regulations. Water Resources Dept. v. City of Klamath Falls, 68 Or App 148, 682 P2d 779 (1984), Sup Ct review denied

ATTY. GEN. OPINIONS: Requirements for exploring for or production of geothermal or oil or gas resources, (1974) Vol 37, p 68

LAW REVIEW CITATIONS: 4 EL 333 (1974); 47 WLR 405 (2011)

      537.525

NOTES OF DECISIONS

      Where Water Resources Director finds that public welfare, health and safety require corrective controls and director made findings of fact that satisfied statutory standards which director properly interpreted and applied, director’s findings and justification for order establishing Butter Creek Critical Ground Water Area were sufficient. Doherty v. Oregon Water Resources Director, 308 Or 543, 783 P2d 519 (1989)

      Rule of Water Resources Commission that allows phased reduction of water pumpage to levels of sustainable average yields is consistent with statutory policy. Waterwatch of Oregon v. Water Resources Dept., 120 Or App 366, 852 P2d 902 (1993), Sup Ct review denied

      537.545

LAW REVIEW CITATIONS: 40 EL 141 (2010); 47 WLR 405 (2011)

      537.621

NOTES OF DECISIONS

      Protest of final order must include timely submission of protest fee. Dority v. Water Resources Dept., 149 Or App 124, 942 P2d 292 (1997)

LAW REVIEW CITATIONS: 47 EL 519 (2017)

      537.625

LAW REVIEW CITATIONS: 47 EL 519 (2017)

      537.730

NOTES OF DECISIONS

      The written notice of hearing required under this section must be sent by registered or certified mail. Campbell Ranch, Inc. v. Water Resources Dept., 28 Or App 243, 558 P2d 1295 (1977)

      Notice of hearing, which did not refer explicitly to water supply in area being or about to be overdrawn, was adequate to advise petitioners of statutory provisions on which director would rely in making critical ground water area determination. Doherty v. Oregon Water Resources Director, 92 Or App 22, 758 P2d 865 (1988), as modified by 93 Or App 354, 762 P2d 330, aff’d 308 Or 543, 783 P2d 519 (1989)

      Where Water Resources Director finds that public welfare, health and safety require corrective controls and director made findings of fact that satisfied statutory standards which director properly interpreted and applied, director’s findings and justification for order establishing Butter Creek Critical Ground Water Area were sufficient. Doherty v. Oregon Water Resources Director, 308 Or 543, 783 P2d 519 (1989)

LAW REVIEW CITATIONS: 21 EL 18 (1991); 40 EL 141 (2010); 47 WLR 405 (2011)

      537.735

NOTES OF DECISIONS

      This section does not require that critical ground water area contain an entire ground water reservoir; it is sufficient that boundaries of area can be defined and that director indicates which reservoirs are contained within it. Doherty v. Oregon Water Resources Director, 92 Or App 22, 758 P2d 865 (1988), as modified by 93 Or App 354, 762 P2d 330, aff’d 308 Or 543, 783 P2d 519 (1989)

      Where Water Resources Director finds that public welfare, health and safety require corrective controls and director made findings of fact that satisfied statutory standards which director properly interpreted and applied, director’s findings and justification for order establishing Butter Creek Critical Ground Water Area were sufficient. Doherty v. Oregon Water Resources Director, 308 Or 543, 783 P2d 519 (1989)

LAW REVIEW CITATIONS: 47 WLR 405 (2011)

      537.742

LAW REVIEW CITATIONS: 47 WLR 405 (2011)

      537.747 to 537.795

NOTES OF DECISIONS

      Water Resources Commission implementation and enforcement of state control over inspection and construction of wells is discretionary. Ashland Drilling, Inc. v. Jackson County, 168 Or App 624, 4 P3d 748 (2000), Sup Ct review denied

      County ordinance provisions requiring well construction permit, imposing construction permit fees, regulating well location, requiring submission of plot plans, and requiring flow testing are preempted by state law. Ashland Drilling, Inc. v. Jackson County, 168 Or App 624, 4 P3d 748 (2000), Sup Ct review denied

      County ordinance provisions requiring well water quality testing, requiring inclusion of notice in deed of inadequate water supply, and regulating subdivision of lands having inadequate water supply are not preempted by state law. Ashland Drilling, Inc. v. Jackson County, 168 Or App 624, 4 P3d 748 (2000), Sup Ct review denied

      537.747

NOTES OF DECISIONS

      Text of statute implicitly authorizes Water Resources Department to adopt by rule endorsements for different types of wells, as well as department’s establishment of qualifications for different endorsements. Schneider v. Water Resources Dept., 314 Or App 643, 499 P3d 869 (2021)

      537.765

NOTES OF DECISIONS

      Certified copy of well construction log filed with State Engineer is public record intended as representation to all affected parties. Handy v. Beck, 282 Or 653, 581 P2d 68 (1978)

      537.769

NOTES OF DECISIONS

      Water Resources Commission implementation and enforcement of state control over inspection and construction of wells is discretionary. Ashland Drilling, Inc. v. Jackson County, 168 Or App 624, 4 P3d 748 (2000), Sup Ct review denied

      County ordinance provisions requiring well construction permit, imposing construction permit fees, regulating well location, requiring submission of plot plans, and requiring flow testing are preempted by state law. Ashland Drilling, Inc. v. Jackson County, 168 Or App 624, 4 P3d 748 (2000), Sup Ct review denied

      County ordinance provisions requiring well water quality testing, requiring inclusion of notice in deed of inadequate water supply, and regulating subdivision of lands having inadequate water supply are not preempted by state law. Ashland Drilling, Inc. v. Jackson County, 168 Or App 624, 4 P3d 748 (2000), Sup Ct review denied

      537.775

LAW REVIEW CITATIONS: 40 EL 141 (2010); 47 WLR 405 (2011)

      537.800

NOTES OF DECISIONS

      Permit requirement applies only if spring produces sufficient water to flow, undiverted, off property or into another watercourse. Norden v. Water Resources Dept., 158 Or App 127, 973 P2d 910 (1999), aff’d 329 Or 641, 996 P2d 958 (2000)

      537.810 to 537.870

LAW REVIEW CITATIONS: 16 EL 963, 965 (1986)